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Archive for December, 2018

Wrongful Death Versus Survival In California

Posted on: December 11th, 2018

By: Matthew Jones

There are many differences between a wrongful death action and a survival action. A wrongful death action may be filed by the personal representative of the decedent’s estate or the decedent’s surviving spouse/children. A survival action may be filed by the estate’s personal representative or the decedent’s successor-in-interest. The determination of whether to file one action versus the other depends on whether the decedent immediately died from the alleged injuries/incident. If he/she did, then a wrongful death action is the proper claim. If he/she did not, then a survival action is likely the proper claim.

When defending against a wrongful death or survival action, it is imperative to keep in mind the types of damages available to the plaintiffs. In a wrongful death action, the plaintiffs are entitled to compensation for loss of support, loss of services, funeral and burial expenses, loss of companionship, and sexual cohabitation. In a survival action, the plaintiffs are entitled to a much different set of damages, specifically, those damages that would have been available to decedent had he/she survived the alleged injuries/incident. These damages may include medical expenses and loss of earnings, to name a few. The plaintiffs essentially step into the shoes of the decedent and assert the claims he/she would have had.

Despite the various damages that are recoverable in a wrongful death action, punitive damages are only available in a survival action. It is important to identify if punitive damages are alleged in the Complaint and determine the type of claim being asserted: wrongful death versus survival. If punitive damages are alleged and it is a wrongful death action, it is necessary to move to strike the claim or move for summary adjudication on the issue.

If you have any questions or would like more information, please contact Matthew Jones at [email protected].

Florida Updates Its HOA Laws

Posted on: December 10th, 2018

By: Michael Kouskoutis

Earlier this year, Florida has enacted several laws impacting homeowners associations. Among these changes include the following:

As of July 1, 2018, Florida requires homeowners associations to publicly record all amendments to governing documents, where “governing documents” is defined to include “rules and regulations adopted under the authority of the recorded declaration, articles of incorporation, or bylaws and duly adopted amendments thereto.” Prior to this law, an HOA’s rules and regulations did not need public recording to take effect. Therefore, associations should publicly record such rules passed after July 1, 2018, especially prior to any attempt to enforce them.

Also as of July 1, 2018, association board members are not permitted to cast votes through email, and fines levied by the board and approved by the committee must be paid within 5 days after the committee’s approval. Moreover, amendments must be presented to voters with proposed changes either underlined or stricken, unless it would hinder the ability to understand the amendment, whereby a notation must be inserted before the proposal.

While these changes are not monumental, we still encourage homeowners associations to be mindful of them. If you have any questions or would like more information, please contact Michael Kouskoutis at [email protected].

Bipartisan TRACED Act Enhances Penalties for Illegal Robocalls

Posted on: December 7th, 2018

By: Matt Foree

U.S. Senator John Thune (R-S.D.), the chairman of the Senate Committee on Commerce, Science and Transportation, and Senator Ed Markey (D-Mass.), a member of the committee and author of the Telephone Consumer Protection Act (“TCPA”), recently announced the introduction of the Telephone Robocall Abuse Criminal Enforcement and Deterrence (“TRACED”) Act.  Senator Roger Wicker (R-Miss.), the chairman of the committee’s Subcommittee on Communications, Technology, Innovation and the Internet is a cosponsor of the bill.

The TRACED Act is introduced in a climate of increased frustration from consumers about robocalls that are not being sufficiently addressed by the TCPA.  Senator Thune explained that “the TRACED Act targets robocall scams and other intentional violations of telemarketing laws so that when authorities do catch violators, they can be held accountable. Existing civil penalty rules were designed to impose penalties on lawful telemarketers who make mistakes. This enforcement regime is totally inadequate for scam artists, and we need do more to separate enforcement of carelessness and other mistakes from more sinister actors.”

Significantly, the bill broadens the authority of the Federal Communications Commission (“FCC”) to levy civil penalties of up to $10,000 per call against those violating telemarketing restrictions. The bill also provides new criminal fines of up to $10,000 per violation, with the opportunity to treble such amount if the activity is intentional.  The bill also extends the window for the FCC to catch and take civil enforcement action against intentional violations to three years after a robocall is placed, instead of only one year. Furthermore, the bill brings together several federal agencies as well as state attorneys general and other non-federal entities to identify and report to Congress on improving deterrence and criminal prosecution of robocall scams. The bill also requires providers of voice services to adopt call authentication technologies to enable telephone carriers to verify that calls are legitimate before they reach consumers phones. Finally, the bill directs the FCC to initiate a rulemaking to help protect subscribers from receiving unwanted calls or texts from callers using unauthenticated numbers.  A copy of the TRACED Act is located HERE.

Senator Thune’s statement regarding the TRACED Act is located HERE  and Senator Markey’s statement is HERE .  We will continue to monitor the status of the TRACED Act and report back with updates.

If you have any questions or would like more information, please contact Matt Foree at [email protected].

Notice Prejudice Rule Alive and Well in California

Posted on: December 6th, 2018

By: Zach Moura

California’s Second District Court of Appeal said October 16th (Marty Lat v. Farmers New World Life Insurance Co., No. B282008, Calif. App., 2nd Dist., Div. 1, 2018 Cal. App. LEXIS 932) that under the notice prejudice rule, an insurance company may not deny an insured’s claim under an occurrence policy for lack of timely notice or proof of claim, unless it can show actual prejudice from the delay. The court further held that the insurer has the burden of establishing that it was prejudiced.

The insured, Maria Carada, had purchased an occurrence life insurance policy from Farmers New World Life Insurance Co. and named her sons as beneficiaries. The policy included a rider under which Farmers agreed to waive the cost of the insurance while the insured was disabled if Carada provided Farmers with notice and proof of her disability.

Carada was diagnosed with cancer and became disabled as a result, after which she stopped making payments on the policy. Two months after ceasing payments, Carada contacted the insurance agent who had sold her the policy, told the agent of her illness and disability, and asked if the policy could be reinstated. Farmers refused to reinstate the policy. Carada died the following month.

After the beneficiaries made a claim for benefits under the policy, Farmers denied the claim on the ground that the policy had lapsed before Carada died. Carada’s beneficiaries filed suit.

The Court reversed the trial court’s ruling granting an MSJ in favor of Farmers, determining that California’s “notice prejudice rule” applied to the Farmers’ policy rider regarding notice of a disability.

Finding that there was “no dispute” that Carada was totally disabled while the policy was in force and that she would have been entitled to the deduction waiver benefit if she had given Farmers timely notice of her disability, the Court held “Farmers could not deny Carada the benefit of the deduction waiver unless Farmers suffered actual prejudice from the delayed notice.” Because the Court determined that Farmers made no such showing, it held Carada was entitled to the deduction waiver benefit.

For any questions about this decision, or coverage questions generally, please contact Zach Moura at [email protected].

Assignment of Benefits: A Mortgagee’s Consent Matters

Posted on: December 5th, 2018

By: Michael Kouskoutis

Policyholders John and Liza Squitieri suffered a water loss in their Florida home.  Following the loss, Mrs. Squitieri signed an assignment of benefits (AOB) to Restoration 1, an emergency restoration services company.  However, the Squitieri’s policy contained a provision requiring an AOB to have written consent of all insureds and mortgagees.  The insurer declined to pay Restoration 1’s invoices on the basis that neither Mr. Squitieri nor the mortgage company executed the assignment.  Soon thereafter, Restoration 1 filed suit.  The trial court granted the insurer’s motion to dismiss, and Florida’s Fourth DCA affirmed the dismissal, holding that the policy’s anti-assignment provision was unambiguous and not in conflict with the Florida Supreme Court’s 1917 ruling in West Florida Grocery Co. v. Teutonia Fire Insurance, that AOBs cannot be limited by insurer consent.  Most notably, the Fourth DCA acknowledged that its holding may be at odds with the Fifth DCA’s recent decision in Security First Insurance v. Florida Office of Insurance Regulation, which interpreted West Florida Grocery to forbid any consent provision restricting post-loss AOBs.  The Fourth DCA certified the conflict to the Florida Supreme Court.


To date, policy limitations regarding insurer and mortgagee consent have not been widely litigated.  However, as these issues reach Florida’s high court, insurers across the country should keep an eye the outcome.  If you have any questions or would like more information, please contact Michael Kouskoutis at [email protected].